A Supreme Court dispute over the government's power to indefinitely jail immigrants facing deportation has taken on added significance with the election of Donald Trump, who has vowed to remove millions of foreigners in the country illegally.
The case, to be argued Wednesday, pits civil libertarians and federal judges in California against the Obama administration, which is defending the government's broad power in dealing with immigration.
At issue is whether immigrants fighting deportation have a legal right to a bond hearing and possible release if they are held more than six months while awaiting resolution of their case. The immigrants involved include longtime legal residents as well as some here illegally.
Civil libertarians say indefinitely holding such immigrants violates the 5th Amendment guarantee that "no person shall be … deprived of … liberty … without due process of law." In the past, the court has said the word "person" includes immigrants as well as citizens.
They also argue that many of these immigrants have lived and worked legally in the United States and are being held for long periods over minor or nonviolent offenses, including simple drug possession.
Government lawyers counter that federal law mandates that noncitizens convicted of crimes "shall be detained."
In the past, the Supreme Court has been closely split on rights for immigrants. In 2001, the justices said the Constitution "entitles aliens to due process of law in deportation proceedings." By a 5-4 vote, however, they said foreigners facing possible deportation may "be detained for the brief period" required to decide their immigration case.
More recently, federal appeals court judges in California and New York have set six months as the limit for what that "brief period" may constitute. The case before the high court involves a ruling by the 9th Circuit Court of Appeals, which upheld a judge's order in Los Angeles that required the government to give a bond hearing to deportable immigrants who are held in jail for more than six months.
Civil liberties advocates say that without a limit of that sort, the government could wield the threat of indefinite detention against immigrants who might be pressured to simply give up and return home rather than spend years behind bars awaiting resolution.
The case has drawn greater attention since Trump's election and may well portend some of the legal battles ahead under his administration. In his first TV interview after the election, Trump spoke of arresting and deporting 2 million to 3 million foreigners who have criminal records.
"What we're going to do is get the people that are criminal and have criminal records — gang members, drug dealers. We have a lot of these people, probably 2 million. It could be even 3 million. We are getting them out of our country," he told CBS' "60 Minutes."
Immigration experts say that number is not limited to people who have committed felonies or violent crimes, but includes many with lesser offenses, including traffic violations. To carry out such deportations, federal agents would probably prefer to have a free hand to arrest and keep these immigrants in jail.
Officials with Trump's transition team did not respond to a request for comment.
Legal experts say a Supreme Court ruling upholding the president's power to detain immigrants indefinitely would give the new administration greater leverage in cracking down against illegal immigration.
"I thought this case was important before, but obviously it is more important with an administration that wants to do even more deportations," said Karen Tumlin, legal director for the National Immigration Law Center in Los Angeles. "You would think mandatory detention is for people with very severe crimes, but it is not. It can be for relatively low-level charges."
Each day, more than 40,000 people are held in immigration jails because they have a criminal conviction on their records or because they entered the country seeking asylum, according to the American Civil Liberties Union. The court orders do not call for "mass release," but only for "individualized hearings," said Ahilan Arulanantham, an ACLU attorney from Los Angeles who will argue for the immigrants on Wednesday.
He said a significant number of the detainees are "lawful permanent residents" who had families and worked in California, yet were jailed more than a year before their immigration cases were heard.
The lead plaintiff, Alejandro Rodriguez, was brought to this country as an infant and obtained lawful status, but was jailed for possible deportation because of a drug possession and a "joyriding" conviction as a teenager. After more than three years in jail, he won his immigration case and was released.
Arulanantham says immigrants like Rodriguez should be given a hearing before a judge and released on bond if it is decided they are not a danger to the community nor are likely to flee. The court order does not extend to suspected terrorists and "national security" threats, he noted.
But lawyers for the Obama administration urged the high court to throw out the 9th Circuit's decision, which they said calls for a "dramatic and wholesale revision" of immigration laws. They argued for a hands-off approach by judges. They said the justices should affirm "the long-standing rule that the political branches have plenary [complete] control over which aliens may physically enter the United States and under what circumstances."
It's possible the eight justices could divide evenly on the new case. If so, they are likely to put off a ruling until a ninth justice is confirmed.
Kevin Johnson, dean of the UC Davis Law School, said the election has put the case in a new spotlight. "I am more concerned with immigration detention in a Trump administration," he said. "Detention will become commonplace for noncitizens placed in removal proceedings. And with the backlog in the immigration courts, it can take years for removal proceedings to be completed."
In their legal briefs for Wednesday's case, government lawyers warned that allowing these people to be released on bond could allow many of them to escape. It would be time-consuming and costly if agents were forced to track down people who had absconded after their release, they said.
The ACLU disagreed, saying the California court orders have been in effect for four years and have not led to such problems. It says more than 95% of the people released on bond showed up for their hearing before an immigration judge.
The high court is expected to rule early next year in the case of Jennings vs. Rodriguez.
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